The opinion of the court was delivered by: Robert L. Carter, District Judge.
The facts of this case are fully set out in the court's earlier
opinion, reported as Railway Labor Executives' Association v.
Port Authority Trans-Hudson Corp., 695 F. Supp. 124 (S.D.N Y
1988) (Carter, J.), with which familiarity is assumed. In that
opinion, the court found that the decision by Metro-North
Commuter Railroad Company ("Metro-North") to require urinalysis
drug screening at its employees' periodic and return-to-duty
physical examinations gave rise to a "major dispute" under the
Railway Labor Act ("RLA"). 45 U.S.C. § 151-188.*fn1
Consequently, the court enjoined Metro-North from requiring such
testing prior to exhausting the notice, negotiation and mediation
procedures of the RLA. 45 U.S.C. § 156. Metro-North now moves for
an order vacating the injunction based on subsequent changes in
decisional law. In particular, Metro-North contends that
Consolidated Rail Corp. v. Railway Labor Executives'
Association, 491 U.S. 299, 109 S.Ct. 2477, 105 L.Ed.2d 250
(1989) ("Conrail"), establishes that the dispute between the
parties is a "minor dispute" within the exclusive jurisdiction of
an RLA adjustment board. 45 U.S.C. § 153. The
plaintiffs, on the other hand, argue that the injunction is res
judicata and not subject to reconsideration. Alternatively, they
seek an injunction compelling arbitration and forbidding
implementation of the drug-testing program pending a decision by
the adjustment board.
Plaintiffs' contention that this court's earlier ruling is res
judicata is incorrect. "Under res judicata, a final judgment on
the merits precludes the parties . . . from relitigating issues
that were or could have been raised in that action." Allen v.
McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308
(1980). The court has not entered a final judgment in this case.
Even assuming, however, that the injunction in this case has the
effect of a "final judgment on the merits," Rule 60(b)(5),
F.R.Civ.P., explicitly authorizes the court on motion to relieve
such a judgment of its prospective effect. Rule 60(b)(5) states
that "the court may relieve a party . . . from a final judgment,
order, or proceeding" if "it is no longer equitable that the
judgment should have prospective application."
Regardless of how Metro-North's motion is characterized,
consideration of the motion is not subject to res judicata but at
most is guided by the more flexible principle of law of the case.
See Kham & Nate's Shoes No. 2, Inc. v. First Bank of Whiting,
908 F.2d 1351, 1355 (7th Cir. 1990) (whether an order that is not
final may be vacated is a question of the law of the case); Cox
v. Wyrick, 873 F.2d 200, 202 (8th Cir.) (law of the case is
applicable to Rule 60(b) proceeding), cert. denied, ___ U.S.
___, 110 S.Ct. 105, 107 L.Ed.2d 68 (1989); Ritter v. Smith,
811 F.2d 1398, 1404 (11th Cir.) (motion to vacate judgment implicates
law of the case, not res judicata), cert. denied,
483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 747 (1987); cf. Toussaint v.
McCarthy, 801 F.2d 1080, 1090, 1092 & n. 11 (9th Cir. 1986)
(discussing law of the case on motion to modify injunction),
cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871
(1987). The doctrine of the law of the case "posits that when a
court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same case."
Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391,
75 L.Ed.2d 318 (1983). As applied to a court's own earlier
rulings, the doctrine is discretionary and does not deprive the
court of power to reconsider those rulings. Id. at 618, 103
S.Ct. at 1391. Rather, "a clear conviction of error on a point of
law . . . will prevail over `the law of the case.'" Zdanok v.
Glidden Co., 327 F.2d 944, 952-53 (2d Cir.), cert. denied,
377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964); see Toussaint,
supra, 801 F.2d at 1092 n. 11.
To be sure, a motion to modify or dissolve an injunction is not
a substitute for a timely appeal from the order of the court.
Schildhaus v. Moe, 335 F.2d 529, 530 (2d Cir. 1964); see
United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460,
464, 76 L.Ed. 999 (1932). A continuing injunction, however,
whether preliminary or permanent, is always subject to
modification for a change in circumstances. See, e.g., System
Fed'n No. 91, Ry. Employes' Dep't v. Wright, 364 U.S. 642,
650-51, 81 S.Ct. 368, 372-73, 5 L.Ed.2d 349 (1961). Metro-North
does not merely seek to subject the injunction "to impeachment in
its application to the conditions that existed at its making,"
Swift, supra, 286 U.S. at 119, 52 S.Ct. at 464, but alleges
that subsequent developments have removed the basis for the
prospective application of the injunction.
A subsequent change in decisional law is an appropriate basis
for dissolving a continuing injunction. Toussaint v. McCarthy,
801 F.2d 1080, 1090-91 (9th Cir. 1986); Nelson v. Collins,
659 F.2d 420, 424 (4th Cir. 1981); Elgin Nat. Watch Co. v. Barrett,
213 F.2d 776, 780 (5th Cir. 1954); Coca-Cola Co. v. Standard
Bottling Co., 138 F.2d 788 (10th Cir. 1943); see also Pasadena
City Bd. of Educ. v. Spangler, 427 U.S. 424, 437-38, 96 S.Ct.
2697, 2705, 49 L.Ed.2d 599 (1976) (ambiguity of decree together
with change in decisional law requires modification); System
Fed'n, supra, 364 U.S. at 650 n. 6, 81 S.Ct. at 372 n. 6 (noting
that "many cases" have held a
mere change in decisional law sufficient). In general, "`[w]hen a
change in the law authorizes what had previously been
forbidden[,] it is abuse of discretion for a court to refuse to
modify an injunction founded on the superseded law.'" Toussaint,
supra, 801 F.2d at 1090 (quoting American Horse Protection
Ass'n v. Watt, 694 F.2d 1310, 1316 (D.C.Cir. 1982)).
This case involves no special factors that would warrant
departure from this rule. The defendant does not ask the court to
undo the past effects of the injunction, but only to relieve it
from the injunction's prospective effects. Unlike, for example, a
decree quieting title to land, the injunction in this case
"involve[s] the supervision of changing conduct or conditions" as
opposed to "protection [of] rights fully accrued upon facts . . .
substantially impervious to change." United States v. Swift &
Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932);
see Toussaint, supra, 801 F.2d at 1090-91; Coca-Cola, supra,
138 F.2d at 790. Thus, the plaintiffs' interest in finality is
weak. The only harm that the plaintiffs will suffer if the court
dissolves the injunction is that they will be subject to the
drug-testing requirement itself, which the defendant contends may
no longer be enjoined. The plaintiffs do not allege that the
motion is untimely, nor have they pointed to any other factors
that would make the requested relief inequitable. Thus, if
Metro-North has established that changes in decisional law have
removed the legal basis for the prospective application of the
injunction, the injunction must be dissolved.
Metro-North cites Conrail, supra, as a controlling change in
decisional law.*fn2 Conrail, the railroad in that case, had
added drug screening to the urine tests routinely performed at
its employees' periodic and return-from-leave physical
examinations. The United States Supreme Court found that the
dispute arising from the addition of the drug-testing component
to the physical examinations was "minor" under the Railway Labor
Act because the carrier's position was "arguably justified" under
the collective-bargaining agreement. 491 U.S. at 312, 109 S.Ct.
at 2479. Although the agreement contained no express terms
authorizing physical examinations, Conrail's authority to conduct
the examinations was established by past practice. Id. at 312,
109 S.Ct. at 2485.
The relevant circumstances of this case are virtually identical
to those in Conrail. The plaintiffs attempt to distinguish
Conrail by arguing that the physical examinations in that case
"routinely" included urinalysis, and that a similar showing in
the present case "is foreclosed by the prior judicial finding"
that Metro-North's position had "no arguable justification." Pl.
Mem.Opp. at 10-11. On the contrary, however, the court has
already found that urine and blood specimens had "routinely" been
required at Metro-North's physical examinations since 1983.
Railway Labor Exec. Ass'n, supra, 695 F. Supp. at 127; see
also Herrlin Aff. ¶ 5. The plaintiffs do not point to any other
factors that might distinguish this case from Conrail. Indeed,
Metro-North's position is even stronger than Conrail's, since
Metro-North's collective-bargaining agreements specifically
authorize medical examinations. Burney Aff. ¶ 6. Accordingly, the
Conrail decision compels the court to conclude that
Metro-North's position is "arguably justified" and that the
dispute is "minor."*fn3
The merits of the dispute are thus within the exclusive
jurisdiction of an adjustment board under 45 U.S.C. § 153. See
Conrail, supra, 491 U.S. at 304, 109 S.Ct. at 2481. The court,
therefore, does not decide whether Metro-North's interpretation
of the contract is correct, only that it is "arguably justified,"
as that phrase is used in Conrail. See CSX Transp., Inc. v.
United Transp. Union, 879 F.2d 990, 1003 (2d Cir. 1989), cert.
denied, ___ U.S. ___, 110 S.Ct. 720, 107 L.Ed.2d 740 (1990).
The plaintiffs further argue that, even if the dispute is
minor, the court may enjoin Metro-North from implementing drug
testing pending arbitration. Ordinarily, a carrier in a "minor
dispute" may "act on its own interpretation [of the
collective-bargaining agreement] pending arbitration." CSX
Transp., supra, 879 F.2d at 997. An injunction pending
arbitration "is appropriate only in those instances when it
appears that its absence would prevent the Adjustment Board from
giving a significant remedy to the side that prevails before the
Board." Local 553, Transport Workers Union v. Eastern Air
Lines, 695 F.2d 668, 675 (2d Cir. 1982). The sole purpose of a
minor-dispute injunction is to preserve the jurisdiction of the
adjustment board. Westchester Lodge 2186, Bhd. of Ry. & S.S.
Clerks v. Railway Express Agency, Inc., 329 F.2d 748, 753 (2d
Cir. 1964). Neither party, however, has submitted the dispute to
arbitration, and the court has no power to grant injunctive
relief in a minor dispute unless the dispute is actually pending
before an adjustment board. Manion v. Kansas City Terminal Ry.,
353 U.S. 927, 927, 77 S.Ct. 706, 706, 1 L.Ed.2d 722 (1957) (per
curiam); Westchester Lodge 2186, supra, 329 F.2d at 753. If the
plaintiffs submit the dispute to the adjustment board within a
reasonable time, the court may entertain a renewed application
for an injunction, see id., although it is doubtful that
plaintiffs can satisfy the stringent prerequisites for a
minor-dispute injunction. See International Bhd. of Teamsters v.
Southwest Airlines Co., 875 F.2d 1129, 1136 (5th Cir. 1989) (en
banc) (drug-testing case does not meet prerequisites for
minor-dispute injunction); see also Brotherhood of Locomotive
Engineers v. Missouri-K.T.R.R., 363 U.S. 528, 534, 80 S.Ct.
1326, 1330, 4 L.Ed.2d 1379 (1960) (injunction permissible only if
board decision for union would be "an empty victory"); Local
553, supra, 695 F.2d at 675 (injunction permissible only if
board could give no "significant remedy" without it).
The plaintiffs offer no support for their contention that they
will suffer irreparable harm unless the court orders the
defendant to submit to arbitration. Despite their reference to
"the defendant's refusal to submit the claim to arbitration,"
Pl.Mem.Opp. at 10, the plaintiffs allege no facts that suggest
that a court order is necessary to secure Metro-North's
compliance with its statutory and contractual obligation to
submit to arbitration. The plaintiffs' request for costs and
attorneys' fees is also without merit.
In conclusion, changes in controlling decisional law have
undermined the basis of the injunction against the implementation
of Metro-North's drug-testing policy. The drug-testing policy now
presents a minor dispute within the meaning of the Railway Labor
Act. The dispute is thus within the exclusive jurisdiction of an
Accordingly, the injunction entered against Metro-North in this
case on August 16, 1988, is dissolved. The plaintiffs' requests
for an injunction compelling arbitration and restraining
implementation of the drug-testing policy pending ...